C. A. 1907 SIMPSON V. TORONTO AND YORK RADIAL R.W. Co. Riddell, J. The question of negligence of the defendants and contributory negligence of the plaintiff must, as stated by my brother Britton on the argument, be taken together. By the defendants it was urged that it is negligence per se for a passenger to put his head or any part of his body beyond the side of the car, and that the railway company cannot be held bound to provide that, in case he acts thus negligently, there shall be no obstruction near enough to hurt him. No doubt there is a considerable body of authority in the courts of some of the United States going the full length claimed by the defendants. And, while we are not bound by such decisions, we welcome the assistance they afford in arriving at principles of law which may well be considered equally applicable to two peoples living in a similar state of society and material advancement, and under systems of government and law not in their essence dissimilar. Most of the cases will be found collected in Elliott on Law of Railroads, 1897 ed., sec. 1633. See now the second and much-improved edition of 1907, s. 1906, C.Z. and elsewhere. Several others were cited to us by counsel for the defendants upon the argument. It may be of advantage to quote from a few of these. It was held in a case in Massachusetts, Todd v. Old Colony and Fall River R.R. Co., 3 Allen 18, 80 Am. Dec. 49 (Supreme Judicial Court of Massachusetts): "If he (the plaintiff) was then riding on the car with his elbow or arm projecting out of the window, by reason of which he sustained an injury, he was guilty of a want of due care, which would prevent him from maintaining his action. Looking at the mode in which railroads are constructed, with posts and barriers, which are placed very near to the track on which the cars are to pass, the rapid rate at which trains move, the manner in which cars are made, with seats to accommodate passengers so as to avoid any exposure of the body or limbs to outward objects in passing, we can see no ground on which it can be contended that a person, in travelling on a railroad, is exercising reasonable care in placing his arm in such a position that it protrudes from a window, and may come in contact with external obstructions. Certainly, if it is a want of due care to attempt to leave a car when a train is in motion, although going It at a slow rate of speed, as has been heretofore determined by In Bridges v. Jackson Electric Railway Light and Power Co. (1905), 38 So. Rep., 788, 39 Am. & Eng. R.R. Cas. (N.S.), 512, a passenger left his seat and went and stood on the car platform, and then, when the car was running, he attempted to regain his seat by way of the running board, and this was held to be contributory negligence. It was also considered that there is no duty imposed on street railways of preventing their passengers running unnecessary danger. In Favre v. Louisville and Nashville R.R. Co. (1891), 16 S.W. Rep. 370, 91 Ky. 541, it was held that for a person in a rapidly moving railway train to permit his hand to protrude from a window of the car in which he is sitting is such contributory negligence as to prevent his recovering damages for injuries received by its striking some object outside, following Louisville and Nashville R.R. Co. v. Sickings (1868), 5 Bush. 1, in the same court, holding that such an act, even though the arm was but a very short distance beyond the window, was gross negligence. Huber v. Cedar Rapids and M.C. R.W. Co. (1904), 35 Am. & Eng. R.R. Cas. (N.S.) 768, 100 N.W. Rep. 478, decides that where a passenger on a street car, while standing on the platform, leaned over a railing for the purpose of seeing where certain smoke came from to such an extent that he was struck by a trolley pole located from fourteen to seventeen inches from the side of the car, and from nineteen to twenty-four inches from the railing, he was guilty of contributory negligence as matter of law. The Court, speaking of the usual and obvious perils for which one on the platform of a car must look out, says (p. 770):-"Probably the danger from too close proximity of the trolley pole is not to be included among these perils, for passengers have the right to assume that the road has been so constructed as to obviate collisions therewith in the ordinary course of travel, and are not C. A. 1907 SIMPSON v. TORONTO AND YORK RADIAL R.W. Co. Riddell, J. C. A. 1907 SIMPSON v. TORONTO AND YORK RADIAL R.W. Co. Riddell. J. required to keep a look-out for such poles. . . But it does not follow that these poles must be placed beyond the reach of passengers. A passenger is held not to be negligent, as a matter of law, in allowing his hand or part of his arm to protrude from a street car window: Dahlberg v. Minneapolis Street R.W. Co. (1884), 32 Minn. 404; Seigel v. Eisen (1871), 41 Cal. 109; Summers v. Circuit City R.R. Co. (1882), 34 La. Ann. 139; Miller v. St. Louis R.R. Co. (1878), 5 Mo. App. 471; Germantown Passenger R.W. Co. v. Brophy (1884), 105 Pa. 38. But it is only when this is incident to his position in the car, and we have discovered no case in which voluntarily extending the arm any considerable distance beyond the surface of the car, or protruding the head through the window, has been treated otherwise than as negligence per se. Everyone appreciates the danger of exposing any portion of the person beyond the sides of a rapidly moving car, and, when voluntarily done, the current of authority is to the effect that it is such negligence as to preclude recovery for the injury received: Benedict v. Minneapolis & St. Louis Ry. Co. (1902), 90 N.W. 360, 86 Minn. 224. The distinction is illustrated in Cummings v. Worcester, Leicester and Spencer Street R.W. Co. (Mass.). (1896), 166 Mass. 220, where a passenger was riding on the front platform or steps of a closed car. He claimed that he had one foot on the step and the other on the platform facing it, and that he happened to turn his head in the direction the car was moving, when he was struck on the face by a post; while the evidence of the defendants tended to shew that he was facing the street, with both feet on the lower step, his left hand on the dasher rail, and his right hand on the body rail, intentionally leaning out beyond the car, and looking back in the opposite direction from which it was going. Instructions to the effect that a casual or momentary leaning out, such as would be incident to securing a more comfortable or safer position, would not necessarily preclude him from recovery,' but that, if he was in the position described by the defendants' witnesses, deliberately leaning out beyond the car line and looking back when struck, he was negligent as a matter of law." Indianapolis and Cincinnati R.R. Co. v. Rutherford (1867), 29 Ind. 82. A passenger put his arm several inches outside of the window, and it came in contact with a water tank. Held, contributory negligence as matter of law, following Todd v. Old Colony and Fall River R.R. Co., 3 Allen 18; Elliott on Railroads, 1897 ed., sec. 1633; Catawissa R.R. Co. v. Armstrong (1865), 49 Penn. 186, the decision in the latter case not being in point in this discussion. Pittsburg and Connellsville R.R. Co. v. Andrews (1873), 39 Md. 329. If a passenger of mature years voluntarily or inattentively projects his elbow or arm out of the window of a railroad car in which he is travelling, and it is injured by coming in contact with a freight car standing on a siding near the main track of the railroad, he is not entitled to recover damages for such injury. placing of his arm out of the window is an act of contributory negligence, and the Court should so instruct the jury as matter of law. The This case discusses many of the cases theretofore decided in the State courts, and mentions one in which the contrary doctrine was held. In Spencer v. Milwaukee and Prairie du Chien R.R. Co., 17 Wis. 488 (503), it was held (p. 493) that "it is a matter of fact whether a person riding in a railroad car and placing his arm upon the window base, even if it extends slightly outside, does so in a manner hazardous and dangerous under the circumstances, or whether he exercises all proper and reasonable care and attention to his personal safety. It is incumbent upon him, of course, so to conduct himself as not to expose his limbs to collision from obstacles outside. The party must be entirely free from negligence which contributes to the injury, and it was for the jury to say, under all the circumstances, whether the plaintiff was wanting in care and attention or not." The Court (pp. 493, 494) goes on to consider if it could be laid down as matter of law C. A. 1907 SIMPSON v. TORONTO AND YORK. RADIAL R.W. Co. Riddell, J. C. A. 1907 SIMPSON V. TORONTO AND YORK RADIAL R.W. Co. Riddell, J. inevitably expose him to danger and collision, we should have no hesitation in saying that he was utterly reckless." The Court also holds "that the rule laid down in the case of Todd v. Old Colony and Fall River R.R. Co., 3 Allen 18, is weight of authority and unsound in principle." contrary to the Christensen v. Metropolitan Street Ry. Co. (1905), 137 Fed. Rep. 708; 41 Am. & Eng. R.R. Cas. (N.S.) 250. Screens with large meshes, fastened across the lower half of the windows of a street car on the side next the poles supporting the trolley wires, are a sufficient protection against the accidental injury to passengers from such poles, and a sufficient warning of the danger of such injury to absolve the railway company from the charge of negligence in that regard. And a passenger in a street car who, on account of sudden illness, extended her head through a window above a screen which covered the lower half of the window, and was injured by striking against a trolley pole beside the track, being obliged, in order to so reach the window, to stand up or kneel upon a seat, was chargeable with contributory negligence as matter of law. At 41 Am. & Eng. R.R. Cases, at p. 254: "The company was not required to anticipate that the plaintiff might become ill and attempt to put her head out of the window, when it would be impossible for her to do so without turning about and either kneeling or standing on the seat." It will be seen that the decisions are not uniform; it will also appear that many of the decisions derive ultimately from the Todd case. That case and many other cases in the same sense are decisions of Courts in which the law is also laid down that it is negligence per se for a passenger to attempt to leave a moving train. Our Courts have refused to follow these Courts in that decision: see Keith v. Ottawa and New York R.W. Co. (1902), 5 O.L.R. 116. Many of the cases will be found on p. 119 of that report, and many more, I think, in the printed appeal book. And while I feel very great regard for the opinion of Mr. Beven, as well as profound gratitude to him for his excellent text-books, I do not think it would be wise to act upon the conjecture of any text writer, however eminent, as to what the Courts in England would probably decide. The case seems to be without authority by which we would be bound, and it must, therefore, be decided upon principle. The |